Fired U.S. Attorney in Washington sues Trump, seeks to overturn Morrison v. Olson precedent

Randy Barnett and I recently completed the Separation of Powers chapter for the Fifth Edition of our casebook—maxing it out, to use the current vernacular. We debated whether to retain Morrison v. Olson at all. Ultimately, we kept it, largely because Chief Justice Rehnquist's opinion explains the line of precedents from Myers to Humphrey's Executor. Moreover, Justice Scalia's iconic dissent was later vindicated in Slaughter. Students should understand how we arrived at the present moment.

Still, we recognized that very little of Morrison survived. The Independent Counsel statute and the special prosecutor regulations barely survived Trump v. United States and are now dead after Slaughter. But one facet of Morrison remains: whether federal judges can appoint prosecutors who are not subject to presidential removal. Now, a new case seeks to overrule that last remnant of Morrison.

The Case

The U.S. District Court for the Western District of Washington appointed Roger Rogoff as United States Attorney. President Trump promptly fired Rogoff. Rogoff has now sued Trump, seeking a preliminary injunction to invalidate the "purported removal." Rogoff argues that Trump's firing violates the Appointments Clause, even after Slaughter.

Slaughter is not to the contrary because it did not address the propriety of removal protections for inferior officers. Before Slaughter, the Supreme Court had long recognized "two exceptions" to the general rule that the President enjoys unbounded removal power: the first authorized Congress to "provide tenure protections to certain inferior officers," and the second to limit removal in "expert agencies led by a group of principal officers." Seila Law, 591 U.S. at 204 (emphases omitted). Slaughter eliminated the latter but left the former in place. 2026 WL 1855612 at 15, 18 ("Nor do we determine the fate of officials not before us.")

Footnote 1 of the Brief

U.S. Attorneys are not the only Executive Branch prosecutors the Judiciary appoints. Historically, they have (on application) appointed independent counsel. 28 U.S.C. § 593; Morrison v. Olson, 487 U.S. 654, 676 (1988) ("[W]e do not think it impermissible for Congress Case 2:26-cv-02566 Document 8 Filed 07/21/26 Page 11 of 32 to vest the power to appoint independent counsel in a specially created federal court."). They likewise appoint special prosecutors pursuing criminal contempt. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987) ("[I]t is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt."); see also United States v. Donziger, 38 F.4th 290, 294 (2d Cir. 2022) (appointment of special counsel by court did not violate separation of powers).

Commentary

Morrison is not long for this world. The Second Circuit's decision in Donziger was wrong. If Justice Gorsuch and Steve Vladeck agree, they can't both be wrong! And I dare Judge Boasberg to appoint a private attorney to prosecute DOJ officials. He would deserve that benchslap.

Federal judges should not be allowed to make appointments to the executive branch—especially United States attorneys who cannot be fired by the President. Moreover, I am not at all convinced U.S. Attorneys are actually "inferior" officers. Lower courts have reached this holding with very conclusory logic, but the Supreme Court has never settled the issue.

If there is a conflict between the executive branch and Congress, it should not fall to the judicial branch to resolve the matter.

I would expect the judges of this District Court to recuse, so some other well-meaning Washington judge will rule against Trump. The Ninth Circuit will then issue a decision that should be reversed.